Aylett v Attorney-General - [2003] TASSC 68

[2003] TASSC 68

CITATION:Aylett v Her Majesty's Attorney-General for the State of Tasmania & Ors [2003] TASSC 68

PARTIES: AYLETT, Ricky John
v

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
HENNESSY, Darren
SMITH, David

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  128 of 1987
DELIVERED ON:  4 August 2003
DELIVERED AT:  Hobart
HEARING DATE:  26 March, 17 April, 26 June 2003
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiff  O M McTaggart
             Defendants:  P Turner
Solicitors:
             Plaintiff  Greg Smith & Co
             Defendants:  Director of Public Prosecutions

Judgment Number: [2003] TASSC 68
Number of paragraphs: 15

Serial No 68/2003
File No 128/1987

RICKY JOHN AYLETT v HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA, DARREN HENNESSY and DAVID SMITH

REASONS FOR JUDGMENT COX CJ

4 August 2003

This is an application by the plaintiff in an action for damages against the Attorney-General and two school teachers for leave to take the next step in the action pursuant to the Supreme Court Rules 2000, r56. The action which was commenced by writ dated 11 May 1987 seeks damages for personal injuries caused to the plaintiff by the negligence of the teachers as servants of the Government of the State of Tasmania on 5 December 1984. At that time the statement of claim alleges the plaintiff was a pupil at the Latrobe High School and was injured in the course of a school excursion through bush at Quamby Bluff, when a fellow pupil, Robert Weekes, ahead of the plaintiff, dislodged a rock which fell onto the plaintiff's head causing him injuries and damage. The particulars of negligence ascribed to the teachers in an amended statement of claim are that they:

"(a)Failed to enquire or enquire sufficiently of the Plaintiff and his companions as to whether they had been bush-walking or climbing before and as to the extent of the experience of each of them in bush-walking and climbing.
(b)Permitted and encouraged the Plaintiff and certain fellow students including the said Robert John Weekes to climb Quamby Bluff, from the Baptist Youth Camp on the Lake Highway nearby, about 500 metres above sea level, towards its summit, about 1,226 metres above sea level, through bush land by a route other than a man-made track, when they knew or ought to have known that the Plaintiff and his companions were not sufficiently experienced in bush-walking or climbing to be allowed to do so.
(c)Failed to check the said route for loose rocks before allowing the Plaintiff and his companions to climb by that route.
(d)Failed to warn the Plaintiff and his companions to be careful not to dislodge loose rocks.
(e)Failed to warn the Plaintiff and his companions to beware of loose rocks falling towards them.
(f)Failed to warn the Plaintiff and his companions to call out a warning if one of them encountered or dislodged a loose rock.
(g)Failed to prevent the Plaintiff from following so close behind the said Robert John Weekes that the Plaintiff could be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aylett v Attorney-General

Details

AGLC: Aylett v Attorney-General [2003] TASSC 68
Case: [2003] TASSC 68
Decision Date: 4 August 2003

CaseChat Overview and Summary

Ricky John Aylett has brought an action against the Attorney-General for the State of Tasmania and two school teachers, Darren Hennessy and David Smith, seeking damages for personal injuries sustained during a school excursion in 1984. The injuries were caused when a rock dislodged by a fellow student, Robert Weekes, fell on Aylett's head. The claim is based on the negligence of the teachers in allowing the students to climb an unmarked and dangerous route without adequate supervision or safety measures. The Supreme Court of Tasmania is tasked with deciding whether to grant Aylett leave to proceed with the action, which has been stalled for over 14 years due to delays attributed to his legal representatives.

The central legal issue is whether Aylett should be granted leave to proceed with the action despite the lengthy delay. According to Supreme Court Rule 56(1), a party may not take any further step in a proceeding if six years have passed since the last step unless the court grants leave. The court must consider whether Aylett has a satisfactory explanation for the delay and whether the defendants will suffer prejudice as a result. Additionally, the court must assess whether Aylett has a valid claim against the defendants based on the alleged negligence during the excursion.

The Court found that Aylett's delay was due to the inaction and incompetence of his successive legal representatives, not Aylett himself. Aylett's lack of legal knowledge and his persistent efforts to advance the case despite the delays were taken into account. The Court also noted that the defendants have not shown any specific prejudice resulting from the delay, such as the unavailability of a key witness. The Court concluded that Aylett has a valid claim based on the teachers' failure to ensure the safety of the students during the excursion, which included not adequately supervising the students, not warning them of potential hazards, and not taking steps to prevent injury. The Court granted Aylett leave to proceed with the action.

The Court ordered that Ricky John Aylett be granted leave to take the next step in the action.

Orders